* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 31, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10285

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN LUEVANO-OROZCO, also known as Juan Leuvano-Orozco,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:04-CR-148-ALL-A

--------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Juan Luevano-Orozco appeals the sentence imposed following

his guilty-plea conviction for illegal reentry into the United

States following deportation in violation of 8 U.S.C. § 1326(a)

& (b). He argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). 

Luevano-Orozco’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Luevano-Orozco contends that Almendarez-Torres was
No. 05-10285

-2-

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi, we have

repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez,

410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298

(2005). Luevano-Orozco properly concedes that this argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

Luevano-Orozco also argues that the district court erred in

departing upward based on improper factors not permitted under

U.S.S.G. § 4A1.3(a)(2). A post-Booker discretionary sentence

imposed within a properly calculated guidelines range is

presumptively reasonable. United States v. Alonzo, 435 F.3d 551,

553 (5th Cir. 2006). If the district court imposed a sentence

outside of the guideline range, it must give specific reasons so

that we can ascertain the reasonableness of the sentence. United

States v. Hardin, 437 F.3d 470-71 (5th Cir. 2006). The effect of

Booker is “to return essentially to the abuse-of-discretion

standard [for upward departures] employed prior to 2003.” United

States v. Simkanin, 420 F.3d 397, 416 (5th Cir. 2005), petition

for cert. filed (Jan. 25, 2006) (No. 05-948).

Luevano-Orzoco has not shown that the district court’s

upward departure was an abuse of discretion or unreasonable. 

The district court properly considered factors that are

permissible under § 4A1.3(a)(2), including Luevano-Orozco’s old
No. 05-10285

-3-

convictions involving similar or serious dissimilar conduct, see

§ 4A1.2, comment. (n.8); his juvenile adjudications, see United

States v. Hawkins, 87 F.3d 722, 730 (5th Cir. 1996); and lenient

sentences for prior convictions. See United States v. Lee,

358 F.3d 315, 328-29 (5th Cir. 2004). The district court did not

base its decision to depart upward on his arrest record. The

district court did not err in considering California criminal

record printouts of his prior convictions as these records

established the offenses, and he does not argue on appeal that

he was not previously convicted of these offenses. Further,

Luevano-Orozco had been deported seven times, and he returned to

commit additional crimes upon each reentry. The district court’s

decision to depart based on his likelihood to recidivate was

warranted and proper. See United States v. McDowell, 109 F.3d

214, 218 (5th Cir. 1997). Moreover, the 120-month sentence

imposed by the district court was well below the 240-month

statutory maximum sentence for the offense and was reasonable,

given Luevano-Orozco’s lengthy criminal history, his seven

previous deportations, the likelihood of recidivism, and the need

to protect the public. See United States v. Smith, 417 F.3d 483,

489-91 (5th Cir.), cert. denied, 126 S. Ct. 713 (2005); see also

United States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006). 

The district court provided sufficient, valid reasons for its

decision to depart upward and, therefore, the sentence was

reasonable. See Hardin, 437 F.3d at 470-71.

AFFIRMED.